HomeMy WebLinkAboutC2007-390 - 10/23/2007 - Approved~inaf ~ 0119I~OU7
INF~ATR~J~T~~E FINAN~N AR~L~NT
By and ,~rnong
CITY ~F ~RP~ ~IR~T~~ T~~A
and
R~ST~V{~N ~N~N~~N, LLB
and
~R~T~VVN ~1V~~N ~LL~PN~ENT R~~1~AT~~N
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~r~~stown ommon~, LL'
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cacti b~. ~u-v~d ~,,ri~ ~e Cr~ss-b~.
~o~wlwv~n~is Dev`l.~e~me,+rtt ~.arNora~
Y-ec~rds.
IN~'RAT~UCT~]R~ FINANCING A~REEIVI~NT
This Agreement ~"~ reen~ent"} is made and entered into as of November ~, 2aa7 the
"Effective Date"}, by and among the City of Corpus Christi, Texas, a harne~rule municipal
corporation the "City"}, Crosstown Cornmans, LLC, a Texas llmlted llablllty company,
~"De~rela er"}, and Crosstown Cammans Develaprnent Corporation, a local government
corporation the ">~C"} created pursuant to Chapter 431, Texas Transportation Cade and
Chapter 3 q4, Texas Local Gavernn~ent Code
~~.~~~~! ill
wI~EREA, the Developer desires to develop a lifestyle and power center to be known
as`Crosstown Commons," as n~vre particularly described in the conceptual plan far the project
attached hereto as Exhibit A the "Pr. ate" as more particularly defined below}, to be developed
an a vacant, unproductive, approximately ~~a-acre site in Carpus Christi, Texan; and
w~EI~EA, the Developer and the City entered into a Preliminary Infrastructure
Financing Areernent dated as of duly ~7", ~~~~ ~"Freliminar~ A red evnent"~ ettln~ Earth t~l~ ~~S1S
for negotiating the terms of the #~nancing of certain infrastructure improvements associated with
the Fro j ect; and
wHEREA, the Developer has determined that the accelerated construction of certain
infrastructure ~"Infrastructure," as defined herein} will enhance the Fra~ect; and
wHEI~EA, the City has established a program in accordance with Article III,
section ~~-a of the Texas Constitution and Chapter 38a of the Texas Local Government Cade
~"Chapter 3SU"} under which the City has the authority to make lawns ar grants of public funds
fvr the purposes of promoting local economic develaprnent and stimulating business and
commercial activity within the~City; and
w~IE~EA, the City has concluded and hereby finds that this Agreement pran~ates
economic development in the City of Corpus Christi and, as such, meets the requirements under
Chapter 3g~ and the City's established economic development program, and, further, is in the
best interests ofthe City and Developer; and
wHEREA, the City recognizes the positive economic irr~pact that the Project will brink
to the City through development and diversi~icatian of the economy, elirninatian of
unernployrnent and underemplayn~ent through the production of new dabs, the attraction of new
businesses, and the additional ad valorem and sales and use tax revenue generated by the Project
far the City; and
w~E~EA, the Developer will directly finance, design and construct the Project and the
Infrastructure to sere the Project and then convey the off-bite infrastructure has defined herein
to the City, as contemplated in this Agreement; and
w~IE~EA, in consideration of construction of the Infrastructure and the development of
the Project, which in any event shall include a lifestyle center, which will bring additional dales
Tax Revenues and Property Tax Revenues has defined herein} to the City, and additional jobs
located at the Pra ject, the pity and the L~ agree to use such funds in order to provide the
Reimbursement Amount has defined herein} to the Developer either directly or by the LCC's
issuing bonds secured by such funds in the amount described in Article IV of this Agreerr~ent;
and
HP~R.I~A, consistent with Article III, section SZ-a of the Texas Constitution, Chapter
3S0 and other Ia~r, City, the Developer, and the LAC as conterr~plated in this Agreement agree to
work together to cause the public purposes of developing and diversifying the economy of the
state, eliminating unemployment or ur~deren~ployrnent in the state, and developing or expanding
transportation or commerce in the state; and
PI~R~A, to ensure that the benefits the City provides under this Agreement are
utilised in a manner consistent with Article III, section S~-a of the Texas Constitution, Chapter
38o and other Ia~v, the Developer has agreed to comply v~ith certain conditions for receiving
those benefits, including performance rr~easures relating to job creation, Project operations, and
the hiring of local and disadvantaged businesses for the construction of the Project; and
HEREA, the City, the Developer, and the LAC desire to enter into this Agreement for
their mutual benefit;
N~, TfIP~RR~F~R~:
ARE~MENT
For and in consideration of the foregoing recitals and of the mutual promises, obligations,
covenants and benefits herein contained, City, the Developer, and the LAC contract and agree as
follov~s:
AR~'Y~~ ~
~N~~AL ~`~R1VI
Section I .~ I Incorporation of Recitals, The recitals to this Agreement are hereb~r
incorporated for all purposes. T
eCtlorl 1.02 Defin~t~ons and Terms. The terms iiA reetnent," "Cho ter ~~~ " ii}~3
i{Develo er," "F~ffect~ve Date,=~ ~i~iC," "Prelln~lnar~ ~ reernent, "and "Project" Shall have the
above meanings, and the follov~ing terms have the following meanings:
"Base Property Tax" shall mean 31035.?~, the amount of ad valorem taxes levied and
collected by the City on the Property based on its use and valuation as of January 1, X007,
"Base dales Tax" shall mean $.40,
iii Con~rnitment" is defined in Article I'~.
"Com letian" shall mean the date the Project, which shall in any event include a lifestyle
center as herein described, is opened and fully-leased or occupied at the tirr~e stated by the
Develo er in its request for designation of project completion when the Cross Floor Area of
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Retail s ace in an amount of at least ane of the Carr~pletton Thresholds has been developed, and
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such space shad be deen7ed the "Project" far all purposes under this Agreement. The Project
shall be considered fully-leased or occupied when the I~evelaper certifies that at least ~0°Io of the
Project is leased or occupied; provided, however, in the event that the Developer establishes a
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Corn let~on date pxtor to reaching 9~°I~ occupancy but has reached at least ~OIo occupancy, the
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percentage that Relocation stores represent out of the total Crass Floor Area which actually is
leased ar occupied at such time shall be applied to any unleased ar occupied space up to the 94°I~
level.
"Completion Threshold" shall mean thresholds at which all or a portion of the Project is
Cans fete, and the corns anding eligible Reimbursement Arr~ount as follows:
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~0,5D0,400 ~$13,Z 15,750 for Cff-bite Infrastructure and the balance for ~n-tte
Infrastructure as set forth in Exhibit B} far the development of at least 750,000 Gross
p'loor Area. of Retail space;
$7,004}Oa0 x$13,215,70 for Off~ite Infrastructure and the balance for On~ite
Infrastructure as set forth in Exhibit B} far the development of at least l,a~a,aaa Crross
Floor Area ofRetail space;
$33,500,000 ~1 x,215,750 for Off-bite Ynfrastructure and the balance for On-bite
Infrastructure as set forth in Exhibit B} for the development of at least 1,250,000 Grass
Floor Area of Retail space; or
40,00D,OOD ($1 ~,~ 1$,750 for Off~ite Infrastructure and the balance fox On-bite
Infrastructure as set forth in Exhibit B} far the development of at least 1,500,000 Crass
Floor Area of Retail space.
"Costs of Issuance" shall mean the items of expense payable or reimbursable directly or
indirectly by the UGC and related to the authorization, sale ar~d issuance of LCC bands ar the
authari~ation or incurrence of other obligations, which items of expense shall include without
lirnitin the enerality of the foregoing; travel expenses; printing casts; casts of reproducing
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documents; computer fees and expenses; Ming and recording fees; ~n~tlal fees and charges of the
rI'rustee, ~ in agents, registrars, secur~tles depository, clad any auth~ntlcating agents; lr~~tial
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fees and charges of providers of credit agreements, investment agreerr~ents, investment liquidity
facilities, reserve fund surety policies or other parties pursuant to remarketing, indexing ar
similar a reerr~ents; discounts; legal fees and charge; consulting fees and charges; auditing fees
and expense; credit insurance; financial advisor's fees and charges; costs of credit ratings;
insurance premiums; fees and charges for execution, transportation and safekeeping of LCC
Bonds ar other obligations; expenses and fees of the LCC and the City associated with the L~rC
fonds oz other obligations and initial fees of any arbitrage consultants; and other administrative
or other casts of issuing, carrying and repaying such EGC Bands ar other obligations and
investing the proceeds thereof
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"Debt service" shall have the meaning set forth in any Indenture or similar security
~ reenlent relating to the issuance and delivery of LG~ bands or other obligations.
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"Debt service Fund" shall mean the Debt service Fund established in the Indenture or
similar securi a reerr~ent relating to the issuance and delivery of LCC Bands ar other
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obligations.
"Debt service Reset~e Fund}' shall mean the Debt service Reserve Fund, if any
established in the Indenture or similar sgicurity agreement relating to the issuance and delivery of
LCD Bands~ar other obligations.
"Develo meet A regiment" shall mean the development agreerrlent entered into between
the pity and the Developer, dated June ~6, ~aa7,
"Fiscal dear" shall mean the twgilve consecutive rnanth period designated by the pity as
its fiscal ear. As of the date of this Agreement, the pity's fiscal year commences on August 1
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and ends on the next succgieding July ~ 1.
"dross Floor Area" shall mean the sum, in square feet, of the gross horizontal areas of n
buildin rr~easured from the exterior faces of the exterior v~alls or from the centerline of walls
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separating two buildings, but not including:
{ 1 }Attic space providing headroom of less than seven feet;
~~~ Basement space not used for retailing,
~} uncovered steps or fire escapes;
~4~ Accessary water towers or coaling towers;
~~}Accessory off-street parking spaces; and
~b~ Accessary off-street landing berths,
"Indenture" shall mean the indenture of Trust and any supplemental indenture entered
into between the LCC and the Trustee relating to the issuance and delivery of L Bands and
other abligations~
"Infrastructure" shall mean the streets and roadways, drainage and detention associated
with streets and randwa s, landscaping and lighting, parking facilities, water, sewer, and storm
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sewers and all other utilities and other infrastructure, as further described in Exhibit B attached
hereto The Infrastructure consists of two cornpanents as further defined below, off~site, and on~
site, as delineated ~n Exhibit B attached hereto
"Letter of Acce trance" shall mean a certificate of the pity certifying the corr~pletion of
ail or a ortian of the Infrastructure constructgid by or under the supervision of the Developer in
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accordance with the applicable plans and regulations
"LOS Bands" shall rnean any 1~ contract revenue bands, obligations or notes issued in
accordance with state law and pursuant to this Agreement and secured by the dales Tax
Revenues ar Property Tax Revenues, and any combination thereof, payable hereunder.
"off-bite Yr~fratructure" shill mean the infrastructure constructed off the Property and
dedicated to the pity pursuant to this Agreement and the Development Agreement, as delineated
in Bxhibit B attached hereto, including hard and soft costs relating thereto.
"On-Site Infrastructure" shall mean the Infrastructure constructed an the Property, as
delineated in Exhibit B attached hereto, which shall be maintained by the Developer rather than
the pity,
"Parties" or "Part "shall mean the pity, the LOC, and the Developer, the parties to this
Agreementt
"Project" shall mean the improvements, specifically including a lifestyle center, as
described herein and as further described in the Developt~ent Agreement entered into between
the pity and Developer, dated June 2, ~OO7, as constructed by the Developer upon arr~pletion.
"property" shall mean the real property on which the Project gill be built, as described in
Exhibit ~ attached hereto,
"Pia a Tax Revenues" shall mean G~°Io of the pity ad valorem taxes generated from
the Project and collected by the pity in each piscal dear, above the Base Property Tax, during
the term ofthisAgreement,
~`Reiml~urserr~ent Amount" shall Mean an arnaunt based on the Property Tax Revenues
and Sales Tax Revenues, but limited to the sun of I ~ for the Off-Site Improvements, the actual
costs incurred by the Developer, upon ompletian, up to 1 ~,~ 18,7; and Z} for the On-bite
Infrastructure, the corresponding dollar amount listed far each on~pletian Threshold ~
,
.with respect to the Off~ite Improvements, the pity shall have the right to inspect
the records of the Developer to verify that such costs have actually been incurred by the
Developer, The Reimbursement Amount shall not include any; i} municipal ad valorem taxes
generated by personal property included in the Pia jest; ii} sales and use taxes received by the
pity far crirr~e control and prevention or pursuant to sections 4A or ~B of the Development
Corporation Act; iii} hotel or motel taxes generated Ervin the Project; and iv} utilities revenues
and other fees collected by the City from the Project.
"Reimbursement Pund" shall mean the special fund created by the pity as described in
section 4.01 ~A} of this Agreement,
".esee l~'ur~d_ Requirement" shall have the meaning set Earth in the Indenture or similar
securi a reen~ent relatin to the issuance and delivery of LOC Bonds or other obligations,
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"Relocations" shall mean:
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~A} Each and even retailer that has relocated from an existing location within the
City to the Pra jest, if i} it operated a Retail store in the corporate limits of the pity r~rithin three
years imrrrediately preceding opening of its new Retail stare in the Praject; and iii it closes that
stare within three years immediately following opening of its new Retail store in the Project. In
the event that the new stare in the Praject is larger than its closed stare, the percentage of Cross
Floor Area has such term is defined herein} which represents the increase shall not be considered
part of the Relocation but shall be treated as new store sales. In the event that the retailer's new
stare in the Praject is smaller than its closed store, na adjustment shall be made,
~~~ ~n the event a retailer opens an additional stare, but the original stare closes
within the three~year period, the retailer will not be considered a Relocation if the City Council
of the City determines in its sale discretion that either ~i} the stare closure was due to economic
circumstances not related to the apening of the Project; iii} the reviler opens a comparable stare
at another location elsewhere in the City f ar viii}the space vacated by the retailer is re-leased to a
corr~parable retailer, In addition to the foregoing, a relocating retailer may not be allowed to
establish Retail outlet in the Praject unless the retailer is required by contract to cooperate upon
the request of its farmer landlord to release its former space, ~iatwithstanding the foregoing, a
"srrzll business retailer" may relocate to the Praject and not be considered as a R.elacation, A
"smelt business retailer" is defined as a single retailer having 1 a or fewer employees and not
occupying a rnulti~tenant facility within the corporate limits of the City.
~} The calculation of Relocations shall commence upon the Project Completion at
the applicable Completion Threshold. The City ar~d the Developer agree to seek an agreement
with the Texas Comptroller of Public Accounts concerning the categorization of dales Tax
Revenues far can~pliance with these provisions, Alternatively, the Developer will seek to obtain
actual sales information from all stores which are Relocations, and the sales and use taxes from
the actual sales shall be subtracted frat~ the total dales Tax Revenues, The Developer agrees to
exercise reasonable efforts to obtain actual sales and use tax information frorr~ each stare which
is a Relocation, and to provide such information to the City promptly upon the Developer's
receipt thereof. In the event that the parties are unable to obtain actual sales infar~nation far the
Relocation stares, the amount of sales shall be determined an a proportionate basis utilizing the
Cross Floor Area of the store excluding any increase in size from the closed location} compared
to the dross Floor Area of Retail space in the entire Praject as completed on the date of such
calculation.
"Retail" shall rr~ean the use of a facility for the sale of goods to consumers, a facility far
the revision of services to consumers, a facility far the sale and service of food or beverages to
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consurr~ers, or a facility providing entertainment to consumers,
"ales Tax Revenues' shall mean ~7°Io of the City one cent sales and use taxes generated
from the Praject and remitted to the City by the Comptroller of the state of Texas, shave the
Base Sales Tax, in each Fiscal Year during the term of this Agreement, and exclusive of any
sales and use taxes generated from Relocations. The City sales and use taa~es generated by
Relocations in the Praject shall first be subtracted frarr~ the total City sales and use taxes sa that
the amount of City sales and use taxes to be applied toward the Reimbursement Arr~ount will be
applied only to the net new amount of City sales and use taxes generated by the Praject.
"State Camptrol~er" shall mean the Comptroller of public Accounts far the Mate of
Texas, ar such other a enc res ansible far collecting sales and use taxes ~rithin the Mate of
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Texas and remitting then to the Cityi
"Trustee" shall mean the hank ar other financial institution designated as such in the
indenture.
ectian 1.03 Singular and Fl,urat. fiords used herein in the singular, where the context
sa ermits also include the lural and vice versa. The definitions of v~ords in the singular herein
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also apply to such v~ards v~hen used in the plural ~rhere the context so permits and vice versa,
Al~TIC~~ ~~
RPI~EENTATI~N
Section 2.01 Representations of the its. The ~it~r hereby represents to the Developer
and the LAC that as the date hereof:
~A} The City is a duly created and existing municipal corporation and home rule
municipality of the State of Texas under the laws of the Mate of Texas and is duly qualified and
authorized to carry an the governmental functions and aperatior~s as contemplated by this
Agreement.
{B} The City has the pov~er, authority and legal right under the laws of the State of
Texas and the City Charter to enter into ar~d perform this Agreement and the execution, delivery
and performance hereof {i} v~ill not, to the best of its kna~vledge, violate any applicable
judgment, order, lave ar regulation, and {ii} do not constitute a default under, ar result in the
Creation af, any lien, charge, encumbrance or security interest upon any assets of the City under
any agreement or instrument to v~hich the City is a party or by which the City or its assets may
be bound ar affected
{C} This Agreement has been duly authorized, executed and delivered by the City
and, constitutes a legal, valid and binding obligation of the City, enforceable in accordance with
its terms except to the extent that ~i} the enforceability of such instruments rriay he limited by
bankruptcy, reorganization, insolvency, moratorium ar other similar lags of general application
in effect from time to time relating to or affecting the enforcement of creditors' rights and
{ii} certain equitable remedies including specific performance nay be unavailable.
{D~ The execution, delivery and performance of this Agreement by the pity do not
require the consent ar approval of any person v~hich has not been obtained.
Section ~~02 Re resentatians of the Devela er. The Developer hereby represents to the
City and the LCC that as afthe date hereof:
{A} The Developer is duly authorized and existing and in goad standing under the
lags of the State of Texas, and is ~ualif ied to da business in the State of Texas
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~B~ The Developer has the power, authority and legal right to enter into and perform
its obligations set forth in this Agreement, and the execution, delivery and performance hereof,
~i} have been duly authorized, and v~ill not, to the best of its knowledge, violate any judgrr~ent,
order, law or regulation applicable to the Developer, and ~ii~ do not constitute a default under or
result in the creation af, any lien, charge, encurrabrance or security interest upon any assets of the
Develo er under any agreement or Instrument to which the Developer is a party or by which the
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Developer ar its assets may be bound or affected
{C) The Developer will have sufficient capital to perform its obligations under this
Agreerrtent at the time it needs to have sufficient capital
~D} This Agreement has been duly authorized, executed and delivered and constitutes
a legal, valid and binding obligation of the Developer, enforceable in accordance v~ith its terms
except to the extent that ~1~ the enforceabtltty of such lnstrunlents relay be limited by bankruptcy,
rear anization, insolvency, moratorium or other similar laws of general application in effect
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frorrt t~rrle to t~nle relating to or affecting the nfarcerrtent of creditors rights and X11} certain
equitable remedies including specific performance maybe unavailable.
Section ~.~3 ~e resentations of the ~~. The )~ hereby represents to the pity and
the Developer that as of the date hereof;
~A~ The LG is duly authorized, created as a local government corporation, existing
under the laws of the Mate, and is duly qualifed and authorized to carry an the functions and
operations as contemplated by this Agreement.
~~ The L~ has the power, authority and legal right to enter into and perform this
A regiment and the execution, delivery and performance hereof fit} v~tll not, to the hest of Its
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lcrlawledge, violate any applicable ~udgtnent, order, law ar regulation, and ~~1} does not constitute
a default under, or result in the creation of, any lien, charge, encumbrance or security interest
upon any assets of the LCC under any agreement or instrument to which the ~ is a party ar
by which the ~ or its assets tray be bound or affected.
~} This Agreement has been duly authorized, executed and delivered by the l;~G~
and, constitutes a legal, valid and binding obligation of the L~, enforceable in accordance with
its terrrts exce t to the extent that ~1~ the enfarceabtltty of such lnstrUments may ~~ limited ~]~
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banl~ru tc , reorganization, Insolvency, t~oratorlum ar other strntlar laws of general application
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in effect from time to tune relating to or affecting the enforcerrlent of creditors' rights and ~ii~
certain equitable retnedtes including specific performance may be unavailable.
D The execution, delivery and performance of this Agreement by the L da not
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require the consent or approval of any person which has not been obtained.
TILE ~Y~
D~~LOPR ~IVI11~~T1V~ENT
ectian ~.~ 1 Pr^ o~ect,
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A ub'ect to ac uirin the Property obtaining financing for the construction of the
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Fro"ect and the cam liance of the pity with the terms of this Agreement and the Development
~ ~ herein to
A regiment the Devela er agrees to develop and construct the Project as described
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accom lisp darn letion of the Project within seven ~?} years from the date of this Agreement.
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The Deveio er shall a all en ineering, planning, accounting, architectural, legal fees and
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ex eases curve ,testing, laboratory costs, license fees, land clearing and grading casts,
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odvertisin and other biddin costs, amounts due under construction contracts, casts of labor and
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rriateriai insurance rerniurr~s, and other costs and expenses incurred ~n connection with
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construction of such infrastructure improverr~ents, which costs as set forth in exhibit B attached
hereto are estimated to a roximate ~5,~~~,000. The pity shall not be responsible far any of
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such costs out of its current revenues or other sources, except in accordance with
reirnburserrient tothe Developer for the casts ofthe infrastructure in the Reimbursement Amount
as provided in this Agreement.
~ The Develo er a reel not to construct more than 1,~~,~0~ dross Floor Area of
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Retail s ace durin the eriod ending three years from the date of this Agreement. The
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Develo er n~a deerr~ the Project complete at any of the completion Thresholds and accep
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Reirr~bursement Amount s ecified far such level of ~ampletian Threshold, subject to the terms
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and conditions of this Agreerr~ent. The Developer agrees to assist the City, if so requeste ~
Ci in the re oration of an documentation necessary for the preparation and opproval of any
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of the documents or actions re aired by the City to perform any of the obligations under this
A regiment. The Devela er further shall prepare ar cause to he prepared any prelir~iinary
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architectural ar en ineerin fans and f nancial data and projections necessary to perform the
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obli ations of the fit under this Agreement. The Developer agrees to proceed ~n g
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towards the urehase of the Property and development of the Pra~ect" ~Jpan ~an~p
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Fra'ect and durin the term of this Agreement, the Developer shall maintain the property,
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im raverrxents and remises in a commercially reasonable manner, comparable to the
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maintenance of sirr~ilar retail establishments; and sha11 timely pay all taxes assessed against the
property.
section ~.~~ Jab creation" The Developer's receipt of the Re~mburserrxent Amount is
subject to the following can~mitment the "Jobs Re~ui ement"}; the Developer agrees to
construct the Pra'ect and assure that at least 50~ nevi jobs will be created by Retail
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establishments located within the Project within six months of arripletion of the Project, which
'obs will be made available rincipaliy to iocai residents residing within the pity. The Developer
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shall obtain certification from its tenants ar occupants as to the number of new jobs created in
carry fiance with this rovisian. As used herein, the term "jobs" shall mean full-tune equivalent
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asitions raviding a regular ~rork schedule of at least ~5 hours per week" Upon q
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the fit the Develo er shall submit docurrientation os reasonably necessary to evidence
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satisfaction that the Developer has met the Jobs Requirement"
section 3~~~ ertional ~e uirements"
A The Develo er's recei t afthe eimburserrrentAmo~nt is subject to the following
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corrimitrr~ent the "D erationai Re uirement"}; the Developer agrees to maintain the Pra~ect as a
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Retail and mixed use devela rnent far the duration of the period during ~vh~ch the
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Reimbursement Amount is aid or there is outstanding debt service an any L~ hands issued to
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a the Reirnbursen~ent Amount; any default in such obligation shall result in the forfeiture of
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the right to receive reirn6urserr~ent far any of the Reimbursement Arnaunt other than those
ro'ects which are designated as Dff Site Infrastructure improvements, and any amounts in
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excess of said amount disbursed to the Developer shall be returned tQ the ~,
~B} In the event Relocations exceed ~4°I~ of the total brass 1~ laar Area of Retail space
in the Project, such event shall be a default hereunder and the Developer shall forfeit the right to
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receive reimbursement far any of the Infrastructure costs other than thane casts which are
deli Hated for Dff bite Infrastructure improvements, and any amounts in excess a€ said amount
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disbursed to the Developer shall be returned to the City
~ Additionally, the Project at Completion may Hat include more than one anchor
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tenant as a Relocation from any one multi-tenant facll~ty within the corporate l~m~ts of the C~tyi
An breach of this covenant shall be a default hereunder and the Developer shall forfeit the right
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to receive reimbursement far any of the Infrastructure casts other than Chase casts which are
designated fax off-Site Infrastructure improvements, and any rr~ounts in excess of said amount
disbursed to the Developer shall be returned to the City. Far the purposes of this provision, an
anchor tenant is defined as a stare can~prising at least 17a,000 square feet at the prior rriulti-
tenant facility.}
Section 3.D4 Utilisation of Local Contractors and Su tiers. The Developer's receipt of
the Reimbursement Amount is subject to the fallowing commitment the "Local Re uirement"}:
in consideration of the Reimbursement Amount for the Dn-Site Infrastructure portion of the
infrastructure, the Developer agrees to exercise reasonable efforts in utilizing local contractors
and su tiers in the construction of the Project with a goal of at least 3a°Io of the total dollar
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amount of all construction contracts and supply agreements being paid to local contractors and
su tiers. A contractor ar supplier shall be considered as local if it has maintained an office ar
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the owner has maintained his ar her primary residence within the Carpus Christi MSA far at Ieast
two ears. This aal shad apply to the total amount of all construction contracts and supply
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agreements made by the Developer ~n connection with the canstruct~vn of the Project, Hat dust
the construction contracts and supply agreements made in connection with the Infrastructure
The Parties acknowled a that Borne construction and supply agreements will be controlled by
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articular tenants of the Developer and Hat under the control of the Developer. The Developer
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a reel to encaura a such third parties to adapt a comparable goal of ~ I~ of their construction
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casts, but the Cit acknowledges that Developer has no legal authority ~n connection with such
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third- art cantractin .The Developer agrees, during the canstruct~on of the Pra~ect and for faun
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ears after Cam letion, to maintain written records documenting the efforts of the Developer to
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comply with the Local Requirement.
Section 3.0~ Utilization of Disadvanta ed Business Ente rises• Small Business
Initiatives.
A The Developer's receipt of the Reimbursement Amount is subject to the following
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commitment the "DBE Re uirement"~: in considerat~an of the Re~mbursernent Amount far the
Unite Infrastructure anion of the Infrastructure, the Developer agrees to exercise reasonable
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efforts in utilizin contracta~s and suppliers to the construction of the Project that are determined
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to be disadvanta ed business enterprises, including minority business enterprises, women-owned
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business enterprises and historically-underutilized business enterprises. In order to qualify as a
business enterprise under this provision, the firm rr~ust be certified by the City, the Regional
Transportation Authority ar ariather governmental entity in the jurisdiction of the home office of
the business as complying v~ith state ar federal standards far qualification as such an enterprise.
The Developer agrees to a goal of ~5°Ia of the total dollar arr~aunt of all construction contracts
and supply agreements being paid to disadvantaged business enterprises, with a priority made far
disadvantage business enterprises which are lacal~ The fallowing table shall establish the portion
of a contract with ~ disadvantaged business enterprise which shall count towards the goal:
Disadvantaged Business Enterprises in Corpus Christi 1VlA 1 as°I~
Disadvantaged Business Enterprises elsewhere in Texas 8a°Io
Disadvantaged Business Enterprises outside Texas a°lo
A contractor or supplier shall be considered located in the Carpus Christi NINA if it has
maintained an office ar the owner has maintained his ar her primary residence within the Corpus
Christi 1VIA far at least two years. This Baal shall apply to the total amount of all construction
contracts and supply agreements made by the Developer in connection with the construction of
the Project, not just the construction contracts and supply agreements made in connection with
the Infrastructure. The parties acknowledge that some cantruct~on and supply agreements will
be controlled by particular tenants of the Developer and not under the control of the Developer.
The Devela er agrees to encourage such third parties to adapt a comparable Baal of 25°/o of their
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construction costs, but the City acknowledges that Developer has na legal authority to
connection with such thlyd~party contracting.
~B} The Developer agrees to eater into a Fair share Agreement with the City
+y~+y'ertaining to the achievement of the D)~E requirement. The City shall assist the Developer in
recruiting a person ar firm to provide independent verif caftan and man~taring of Developer's
activities in connection with the above goals. such person or firm shall be responsible far
reviewin the contract information for the contracts made by Developer, verifying the eligibility
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of the firnns identified as meeting the requirements stated above, and providing quarterly reports
to the Cit concerning the Developer's achievement of the goals in connection with construction
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of the 1?ra'ect. The person or frrn may rely upon the determination made by the City or another
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governmental entity as to the qual~ficatian of a contractor ar supplier as a disadvantaged business
cote rise. The casts of such verification and rrianitaring during the construction period shall be
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sub'ect to the approval of and paid by Developer. such casts shall not be subject to
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reimburserrient as administrative expense from the Rein~burserr~ent Amount.
~C} The Developer agrees to provide financial and other support for small business
initiatives of the City as provided by City policies.
~D} The Developer agrees, during the construction of the Project and far four years
aver Carr~pletion, to maintain written records documenting the efforts of the Developer to
carnply with the DBE ~equirement~
~ectian 3.~b Reimbursement I~eductian~
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~A} Ifthe Developer does not satisfy the Jabs Requirement, the Local Requirement, or
the DBE Requirement, the City may reduce the Reimbursement Amauntf The percentage of any
Reimbursement Amount reduction shall not exceed the percentage by which the Developer does
not satisfy the Jobs Requirement, the Laval Requirement, or the DBE Requirement, with equal
Freight given to each requirerr~ent and to the degree of nan~corripliance with each requiren7ent.
The Ci agrees not to reduce the Reimbursement Amount, as long as the Developer hay
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exercised reasonable efforts to catnpl~r with the Local Requirement and the DBE Requ~rernent~
The Develo er shall be deemed to have exercised reasonable efforts to comply with the Local
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Re uirement and the DBE Requirement as long as the Developer keeps and provides to the City
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records re u~red to be maintained under sections 3,04 and 3.a~ documenting its reasonable
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compliance attempts, even if the Developer daes not actually meet the compliance goals.
{B~ If the Developer daes not satisfy any other requirements under this Agreement in
connection with its construction of the Project, the City may reduce the Reimbursement Arnaunt
based u an such default Any reduction of the Rein~bursernent Arriount based on the provisions
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in this section 3 Fab shall be applied to the total Reirr~bursement Arr~aunt; provided that in no
event shall the Reirrrbursement Amount be reduced to an amount belav~r the actual casts
ex ended by the Developer for the Dff bite Infrastructure improverr~ents, The City Co~ni~nitrnent
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and the a rnents therefrom shall continue until the total reduced Reimburserrient Amount is
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paid to the Developer. If the City has paid the Developer the entire Retmbursen~ent Amount
before the Reimbursement Amount is reduced, the Developer shall reimburse the City for the
reduction in the Reirnburscrrient Amount within thirty ~3a} days of being notified of the annount
due to the ity.
ectian 3.0~' Infrastructure.
~A The Project will be developed by the De~velaper simultaneously Frith the
Infrastructure. The Infrastructure shall be designed end constructed by the Developer, The City
will reimburse the Developer for the Reimbursement Amount, subject to the conditions set Earth
herein, and the City's Iinancial obligations with respect to the Infrastructure shall be limited in
amount and scope as provided in Article IV hereof.
~B} The Developer agrees to construct the Infrastructure simultaneously with the
Project and, in accordance with the terms of the Develaprnent Agreement} obtain all necessary
ermits and approvals frorra the City and all other government officials and agencies having
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'urisdiction and provide supervis~an of all phases of construction of the Infrastructure. subject to
the ternr~s of the Development Agreement, the Developer agrees to comply with all City master
Tans, zanin ordinances, building codes and other applicable City ordinances and regulations in
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connection with the Developer's construction of the Project.
~~~ During and fallowing completion of component of the Dff bite Infrastructure,
the Develo er will have an inspection of the Dff-bite Infrastructure done by the City in
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accordance with standard City inspection procedures, and upon approval thereof as being in
earn fiance with a plicable City standards thereto the Dff~ite Infrastructure will be conveyed
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to the City.
section 3,08 Acce tance of Infrastructure,
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~~} Pran~ptly upan the carrrpietian of construction of any con~panent of the off-bite
Infrastructure, the City shall furnish a Letter of Acceptance ~~ certifying its acceptance Each
Letter of Acceptance shall be in recordable farm, and shall be a conclusive determination of
satisfaction with respect to such Dff Site Infrastructure. CJpon written request far a Letter of
Acceptance, the City shall have 3a days after receipt thereof to provide a Letter of Acceptance ar
a written statement indicating in detail why the certificate cannot be issued, and ghat measures
ar acts will be necessary, in the reasonable opinion of the City citing applicable lags and
ordinances to take ar perform to obtain issuance of such Letter of Acceptance. If the City has
not provided the Letter of Acceptance ar such written statement within ~a days after receipt of
the request, the off-bite Ynfrastxucture v~ill be deemed accepted. The Develaper v~ill fallav~
standard City procedures and requirements applicable to all developers within the City with
regard to the acceptance of facilities by the City. The City shall have na obligation to issue such
Letter of Acceptance and the presurr~ption far acceptance of the off-bite Infrastructure shall not
apply until Develaper delivers to the City an assignment of all warranties an the Dff Site
Infrastructure and a complete and sealed set of "as built" plans for the Dff Site Infrastructure,
~B} Aber the City issues its Letter of Acceptance and the Dff Site Infrastructure is
conveyed to the City, Developer shall warranty the Dff Site Infrastructure for a periad of one
gear, thereaier, the Clty covenants to maintain, ar cause to be maintained, the off-~ ite
Infrastructure in good condition and working order, After such conveyance to the City, tl~e
Develaper shall never be obligated tv maintain the Dff~Site Infrastructure.
Section 3.a9 Easements and Rights-ofwa Relatinglto__DffSite Infrastructure,, The
Dvelo er a reel to ravide all easements and rights-afway related to drainage and roadways
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for the off-bite Impraverr~ents required franc the Draper at na cost to the Cit~r~ ~'he City agrees
to allow the use of its existing easements and rights-af-way related to drainage and raad~rays
necessary to construct the DffSite Infrastructure that are not part of the Property. In the event
additional easements or rights~af-way are required for Dff-Site Infrastructure, upan request of
the Develaper the City agrees to acquire such easements or rights-of~way, and the Develaper
agrees to reimburse the City far all cas# and expenses related to the obtaining of any such
easements and rights-of~way related to drainage and roadways necessary to construct the Dff-
Site Infrastructure that are not a part of the property, and such reimbursed costs and expenses
shall be included as an eligible Dff Site Infrastructure cost. If a delay in the construction of tl~e
Dff-Site Infrastructure ar the lira jest occurs because the City is unable to obtain such necessary
easements and right,af-ways, or the City does not timely grant all permits or approvals
necessary, the nurriber of days associated with such delays shall increase the time periad for the
Developer's corripliance with any date of performance required by this Agreement by the same
number of days.
Section 3.I a 1Vlonitoring_b~ the Ci ~. 1Vlonitaring to determine the I~e~elapr's
cam f ian~e with the terms of this A regiment far compliance purposes will be done by the City
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no less than twice per year during the periad of construction, and an an annual basis aver
Completion. During the monitoring process, the City will make ma~inlum use of any State and
federal submissions far the deterrr~inatian of contract corripliance, 11~onitaring may be
accanZplished by City personnel ar other persons designated by the City and shall include review
of compliance with the Fair Share A,greernent specified in Section 3.~5 above, compliance with
the dabs Requirement, the Operational Requirement, the Local Requirement, the DBE
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Re uirernent, and requircrncnts concerning Relacatians. The Devclaper agrees to reasonably
voaperate with the pity in such monitoring process.
~~~~ ~~
P~~J~T FYNANIN AND FUND~N
Sevtian 4~a 1 Pra' ect F inanvin F
~A} The pity hereby covenants and agrees upon the l~ffective Date of this Agreement
to create a ecial fund the "Reimbursement Fund"} far the benefit of the Developer for the
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ur one of crying the Rein~burserr~ent Arr~aunt~ The qty shall fund the Rettnbursement F
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throe h the tarn of this Agreement from the follov~ing sources and in the fallowing manner: i}
~ Tax
with respect to the porttan of the Retnaburserrtent Amount valculated based an the Property
Revenues, the i shall annually fund the Reirr~bursement Fund frarrt any revenues available to
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the i in its general Fund in an amount equal to the Property Tax Revenues; and tt} with
res ect to the action of the Reimbursement Amount calculated based on the Sales Tax
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Revenues, the pity shall rrtonthly fund the Reir~burernent Fund in an amount equal to the S
Tax Revenues from the Sales Tax Revenues Although a portion of the Reirnbursernent Arnaunt
is calculated based on the Property Tax Revenues, the pity is under no obligation to fund the
Reimbursement Fund from the Property Tax Revenues reveived by the pity. The
Reirr~burserr~ent Fund shall always remain unencumbered by the pity and segregated from all
other funds of the Ci ~ Such funds are held in trust by the pity for the Developer to be used in
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accordance with the terms hereof as long as Devclaper ~s to corr~pltance with this Agreerrtent.
The fit a reel that it will, with respect to the pardon of the Reimburserr~ent Amount derived
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from Sales Tax Revenues, make monthly cash payrrtents, and, with respect to the portion of the
Reirr~burserr~ent Amount calculated an the basis of the Property Tax Revenues, make annual cash
a rrtents b June 1 ofeach a livable year, from the Reitnbursetnent Fund to the LAC on behalf
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of the Develo er at an tune cash is available far such purpose under this Agreement until the
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Reimbursement Amount is paid in full as provided herein.
B 1 Pursuant to its authority under various laws, including chapter 3ga and
~} ~~
~ectian 43 t.07a of the Texas Transportation bode, the L shall use reasonable efforts
consistent with then prevailing market conditions to issue L Bonds to generate funds to pay
the Reimbursement Amount to the Devclaper {but limited in amount and scope to the pity
~orntnitnaent as rovided herein}, and pay fasts of Issuance associated with the LrC Bands.
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An L~ Bands Bald ursuant to this Agreement shall be sold as contract revenue bands
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ursuant to chapter 431 of the Texas Transportation fade and shalt be secured by the payments
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to be made b the pity from the Reimbursement Fund under this Agreement, but such payments
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shall be limited in amount to the pity commitment and shall be payable by the pity solely from
the Reimbursement Fund. The LCD Bands tray be sold by negotiation, and issued in one of
rrtore series rrtaturin not mare than ~~ years from the date of issuance, Any L hands issued
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as rovided herein and secured by the pity ~omrnitrrtent may be callable, at the discretion of the
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L The L Bonds will be issued upon the later of when 1} the Project is substantially
~orrt lete, and ~} such L Bands can be issued, in one or mare series ar traunches, an
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commerciall reasonable terms including suvh reserve requirements, coverage requirements,
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credit enhancement features, interest ratan and other features consistent with bonds issued by
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similar entities of like quality and credit worthiness, including, but not limited to, obligations
issued by the North Padre Island Development Corporation secured by tax increment revenues to
fund the costs related to the dredging of and construction of impraverrients related to Packery
Channel. The LrC Bonds shall be deemed to be able to be issued on carn~mercially-reasonable
texrns if a financial advisor hired by the LAC or the City determines that such LC Bonds can be
underwritten, marketed and issued, factoring in the criteria stated in this paragraph, including,
without limitation, projections of the Reirr~bursement Amount and any additional revenues
available prodded under this Agreement to support the payrrlent of debt service an such LCC
Bonds
~~} Alternatively, aver Completion of the project and in the event that market or other
conditions limit the ability of the LC to issue the LAC Bands as prodded above, the Developer
nay elect to have the LAC Bonds issued by the LCC and purchased by the Developer or a third
party nn similar terms and conditions as contemplated above. Such LAC Bands may be in the
farm of band anticipation notes ar other interim instruments providing far possible reissuance ar
issuance of new LAC Bonds to third parties at such tune as market or other conditions allow.
{~} { I } In the event that the LAC does not issue LAC Bonds, the LAC agrees that it
gill either ~i} make cash payrrYents to the Developer for the Reimbuxserr~ent Annount, but such
cash payments shall be limited in arrrount to the City Commitment {and such cash payments shall
be made by the City or the LAC {or the Trustee at the written direction of the pity and the LAC}
at any time when cash is available for such purpose under this Agreement} or {ii} assign the
City's rights to the City Commitment to a third party in order far that third party to issue a loan,
Hate ar other obligation to make such payments to the Developer fox the Reimbursennent Amount
{but limited in amount to the City Commitment as provided herein}.
{~~ Should the LCC not issue LAC Bonds, and make cash payments, such cash
payrrients shall be limited i~a arr~ount to the City Commitment, to the Developer for the
Reimbursement Amount as described in paragraph ~ I } above, the Developer agrees to use the
cash payments, or cause the cash payments to be used, solely for the purpose of i}with respect to
the Off-Site infrastructure, xeimbursing costs of the D~`f-Site infrastructure in accardar~ce Frith
the terms of this Agreement and the Development Agreement, and ii} with respect to the Dn-Site
Infrastructure, for casts relating to the project. In connection with payrr~ents made to defray the
casts of Off-Site Infrastructure construction, the Developer shall provide to the City and the LAC
documentation as to the actual casts of such Df~ Site Infrastructure incurred and paid by the
Developer, and the payments far such costs shall Hat exceed the actual casts incurred. In
connection with the remainder of the payments, if any, representing payments for Dn-bite
Infrastructure expenses, the consideration far such payments shall be the Developer's
construction and completion of the Project in accordance with the terms of this Agreement and
the Development Agreement. Failure of the Developer to observe the foregoing covenants shall
constitute default hereunder.
{D} IT ~ INTENDED BY THE PARTIES HERETO, THAT THE LAC BONDS
wILL BE SPECIAL, LIMITED DBLIATIDNS ~F THE LC PARABLE SOLELY AS
PRD'~IDED HEREIN. NEITHER THE STATE, THE CITY, NDR ANY POLITICAL
CORPORATION, SUBDI~ISI~N, OR AGENCY OF THE STATE SHALL BE OBLIGATED
T~ PAY THE BONDS OR DBLIATIN O THE INTEREST THEREIN AND THAT
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NBITHER TI~> FAITFI AND CRPIDIT NDI~ THB TA~INC POw>~~ DF T~II~ STATB, TIDE
CIT'~ Dr ANA DTI~ER PDLITrCAL CDI~P~I~ATI~N, SUBDIISID~, DR ACB~CY
TFIEREDF IS PL>~DGED T~ TFIB PAYIVIEI~T ~F T)~E PRINCIPAL DF OR THIS I:NTBREST
N SUCK B~~1D DR DBLIATI~hIS.
~E} If any of the L~ Bonds are issued as tax exempt obligations, the City hereby
covenants to the LAC that it will not take any action or Fail to take any action that would
adversely affect the exclusion from gross income of interest on such LAC Bonds.
~F} The City agrees that it will not cause the Lr to be dissolved or otherwise aerie
to exist as a corporate entity so long as any LAC Bonds ar other obligations rerr~ain outstanding
~i} if in the opinion of the financial advisor to the LAC or the City the credit rating an the
outstanding LAC Bands or other obligations would be lowered as a result of such dissolution or
iii} without the written approval of any rr~unicipal bond insurer an any outstanding LAC Bonds
or other obligations under this Agreement.
Section 4.~2 Cit Commitment.
~A} Pursuant to its authority under Chapter 35~, the City hereby agrees to pay the
Reimbursement Amount to the LCC for the benefit of the Developer. It is intended by the
parties that the reimbursement Amount will be paid by the City solely out of the Reimbursement
Fund and used by the LAC to make payments to the Developer ar service the LAC Bonds as
provided in this Agreement, and the LAC is authorized to pledge the funds comprising the
Reimbursement Amount to its debt issued for such purpose the "Cit ornrnitrnent"}. The
maximum amount of the City ammitment is set Earth in Section ~.O~~B}. The City
Cornrriitment will commence upon Completion and will continue through and until the
Reimbursement Arr~ount has been paid and all LC Bonds issued pursuant tQ this Agreement
have been retired, The City agrees that it will pay the Reimbursement Amount during the term
of this Agreement, as an unconditional obligation of the City abut solely from the
Reirrxbursen~ent Fund}, if the Project is Corr~pleted and generates the Reimbursement Amount,
Such payments are not sub ject to any reduction, whether offset or otherwise, except pursuant to
Sections 3.~~ and ~.~~ hereof, and are not conditional upon performance or default by the LAC
under this Agreement or any other agreerr~ent or other abl igation of the LC C.
~B} The Parties agree that the maximum City Commitment shall be an amount
sufficient to pay the principal and interest an, and the Issuance Costs of, and the Reserve Fund
Requirement, if any, far the LAC Bonds in an an~aunt yielding net proceeds equal to the
Reimbursement Amount, and such obligation on behalf of the City will be limited solely to the
funds deposited into the Reirr~bursement Fund pursuant to this Agreement. IJpan such tune as
the City has contributed the maximum City commitment in full, the City shall have no further
obligation under this Agreement,
~~} a long as LAC Bands and other obligations issued or incurred hereunder by the
LG~ remain outstanding and unpaid, the City shall remit to the Trustee at the place where such
LAC Bonds and other obligations are payable, or upon the request of the LC, to the payee of
LAC Bonds and other obligations, the respective sums necessary to pay, or accrue amounts
necessary to pay, the Debt Service an the LC Bonds and other obligations, at the respective
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times and in the respective amounts as fixad and prescribed in the Indenture under authority of
v~hich said 1~C Bonds and other obligations are issued by the I~CC. Promptly after the I~C
Bands {and other obligations} are issued, the 1~GC shall furnish {ar cause the Trustee to furnish}
the City schedule of payments to be made by the City for the Debt Service an the LAC Bonds
and any additional bonds and other obligatians~
{D~ To the extent that proceeds froth the LAC Bands da not fund the Reserve Fond
Requirement, a portion of the City Carrimitment niay be used by the Trustee as necessary to
establish, restore, and maintain an amount equal to the Reserve Fund Requirement in the Debt
service Deserve Fund created in the Indenture and any supplerriental indenture authorizing the
issuance of LAC Bands and other obligations, at such times and in such amounts as provided in
the Indenture authorizing the LAC Bands and other obligations.
{E~ The City shall determine the an~aunt of the Sales Tax Revenues received each
month by the City from the Mate Carriptraller in caaperation with the Developer and the Mate
Corriptroller. The City grid Developer agree to cooperate in any way necessary to receive
information from the Comptroller necessary to deterrriine the Sales Tax Revenue, including the
filin or submittal of any forms ar letters necessary to determine the incidence of local sales and
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use taxes, The City hereby agrees to deposit the Sales Tax Revenues portion of the City
Corrxmitinent into the Reirribursernent Fund, and hereby pledges such fund to the payment of the
City Corr~rnitment as provided herein. The City Commitment shall be remitted to the LGC on ar
before the 1 nth day of each calendar tnanth~ The City designates this Agreement as a Revenue
Sharing A,greeinent, thereby entitling the City to request sales tax information frain the
Caniptraller, pursuant to section 3~ t .3 ~~~, Texas Tax Cade, as amended. [finless determined
otherwise by the Texas Attorney general in writing, any infar~natian received relating to the City
dales Tax Revenue shall be considered confidential proprietary f nancial information not subject
to immediate release to the public, The City shall seek a written opinion froth the Texas
Attoi~ey General, raising any applicable exception to release, prior to any release to athird-party
under the Texas Public Information Act.
{F} The City shall determine the amount of the Property Tax Revenues received
annually b the City in caaperation v~ith the Developer. The City hereby agrees to deposit from
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available funds in the Clty's general Fund an amount equal to the Property Tax Revenues into
the Reimburserrient Fund in accordance with Section 4,01 ~A} of this Agreement, and hereby
led es such fund to the payrrient of the City Cornrnittnent as provided herein The City
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Carrrrriitrnent shall be remitted to the LAC an or before June 1 of each year.
~} The City shall maintain complete books and records showing deposits to and
disbursements frat~ the Reimbursement Fund, which books and records shall be deemed
complete if kept in accordance v~ith generally accepted accounting principles as applied to Texas
munici alines. Such books and records shall be available far examination by the duly authorised
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officers or a chic of the Developer or the LAC during normal business hours upon request made
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not less than five business days prior to the date of such exan~tnation. The City shall ma~ntatn
such books and records throughout the term of this Agreement and store the carne for four years
therea~er~
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Section 4.03 I~eirr~bursemgint Frarra Other Sources. In the event that the pity arranges
far reimbursement of any of the Developer's Off~Sitgi Infrastructure casts listed an Exhibit ~
from othgir sources, such as TxDOT ar applicable trust funds gistablished far such purposes, any
such reimbursemgints shall be credited against the pity ~ei~nbursement, and the sharing ratio for
Property Tax Revginues and Sales Ta~c Revginugis shall bgi prapartianately reduced sa that for the
duration of this Agreement the sarr~e coverage ratios apply to the reduced amount as applied to
the original amount of the pity eimburset~ent.
ART~LE ~
ADDYTI~NAI~ I~IJTIES ANI~ SP~>~SYBII~ITIES
Section 5.~ 1 creation of Other ~e~ial Districts. Notwithstanding any provision herein
or in the Prelirriina A reerraent to the contra , no LG~ Bands ar other obligations shall be
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issued that will be repayable by ar through the pity Carrrn~itrrient until there is created a special
district ar other credit enhancement in order to provide additional revenues or payment guarantee
to support the Debt Service on such LGO Bands or other obligations. Thgi Developer agrees to
the creation of a public improvement district {"PAD"} pursuant to haptgir 372 of Texas Local
Government bode or other similar assessment mechanisnx ~i, e~, municipal management district}
ar other credit enhancement in order to provide additional revenues or payment guarantees to
support tho payment for the Infrastructure Costs or other allowable casts, including, to the extent
permitted by law, Debt Service on any LG Bonds or other obligations issued as provided
above, to the extent necessary to rnaiCe any of the same rr~ar~etable as provided in Section
4.~1 {B} above. The creation, method of assessment and administration of the PID or other
rr~echanisrr~ shall be as proposed by the Developer, subject to approval by the pity.
Section 5.02 Prelirnina ~ regiment. The Preliminary Agreement rerr~ains in full
force and effect to the extent this Agreement or the Dgivelopn~gint Agreement dagis not set Earth
final te~rris for each term agreed to in the Prelirr~inary Agreerr~ent. In the event and to the extent
any term of this Agreement is found tv be void, voidable or unenforceable by a change in lavwr
relating to the authority of the Oity ar the LG to enter into this Agreement and pgirfarm the pity
omrr~itrnent ar by any interpretation, ruling, order, decree, declslan or opinion by a court of
can~petent jurisdiction ar the Attarne~r Creneral of the State of Texas, or by band counsel ar
underwriter's counsel with respect to the I;GC Bands, with the result that the pity ommitrnent
is unpaired or reduced in any gray or arr~aunt, the pity shall can~ply with the terms of the
Preliminary Agreement to the extent necessary to effectuate an alternative agreement that allows
far the City Carrxrr~itment to bgi paid to the Developer an terms sirrzilar to this Agreement,
including the creation of a tax increment reinvestrr~gint Zone. To the extent the prov1s~ans of this
Agreement conflict with the provisions of the Preliminary Agreement or the Development
Agreement, the provisions of this Agreement shall control.
Section 5.03 Amendment of A regiment. Upon the request of the Developer, the pity
agrees to amend this Agregit~ent to provide far any reasonable changes necessary to issue the
LGO Bonds, or othgirwise carry forth the intent of this Agreement.
Section 5.04 Infrastructure of tither Entities. fihgi pity will cooperate with the
Developer and encourage other public entities to take actions consistent Frith the developrr~ent
lg
requirements of the Infrastructure including the Developer's receipt of permits from all
gaverrirrient and quasi#governtnental agencies far the construction of roads required for the
Project. Developer acknowledges that the pity will not request ar encourage other public entities
to take actions inconsistent with their adapted ruses, policies ar pracedure~
ARTICLE
TERl4~ ~' TAE AREEN~ENT AN'~l ~T~ER DBL~AT~~N
section ~f~I Term and Termination. This Agreement shall have a term the "Term"}
beginning on the Effective Date hereof and continuing for a period until the earlier to occur of:
~a} twenty~ftve ~25~ years from the date of ~ornpletion, ar fib} until any L Bands issued
pursuant to this Agreement are retired and all payrr~ents and obligations to the Developer
hereunder have been performed limited in amount and scope to the rr~axi~nurn pity ammitrnent
as set Earth herein}. This Agreement may be amended, supplemented, and extended by mutual
agreement of the parties, but not in such manner as to impair the rights of the owners has defined
in the Indenture} of L bands and ether obligations issued hereunder by the LCD and secured
by a pledge of the payments to be made by the pity hereunder. The pity agrees that it will net
terminate this Agreement during its Term for any reason so long as any LCD Bands or other
obligations remain outstanding, except as otherwise provided in this Agreement,
section ~.I~2 ~ampletion; Bonds and ether Obligations. Subject to approval of the pity
~auncil and the L~ Board of Directors, the ~i and the LOS ~i}agree that the LOC shall issue
additional L~ car~tract revenue hands payable solely as provided hereunder and other
obligations as may be necessary to pay the maximum pity ~amrr~itment that cannot be funded
with a first series of LOC Bands and iii} agree to enter into such additianal supplerr~ents to this
Agreement as shall from time to time be needed to provide for the payrr~ent of principal, interest
and redemption price an such additianal LCD Bands and other obligations, ar refunding bands
and other obligations and to establish and maintain the Debt service Reserve Fund.
ARTICLE V~Y
DEFAULT
ectlon 7.a 1 Default.
~A~ If the City or the LC does not perform its obligations hereunder in substantial
compliance with this Agreement bother than the financial obligations, which shall be in strict
cot~pliance} and, if such default remains uncured for a period of ~~ days after notice thereof
shall have been given, in addition to the other rights under the law ar given the Developer under
this Agreement, the Developer may enforce specific performance of this Agreerrxent, seek a grit
of mandamus to perform obligations under thin Agreement, or seek actual damages incurred by
the Developer for any such default.
~B} If the Developer does not perform its obligations hereunder in substantial
compliance with this Agreerr~ent, and, if such default remains uncured far a period of 6a days
after notice thereof shall have been given, in addition to the other rights under the law ar given to
the pity and the LCD under this Agreement, if the Developer has constructed or is constructing
l~
the Pra'ect, the City and the ~C may, with respect only to construction of the Off-bite
~ her
Infrastructure, select specific performance far construction of the Infrastructure, ar, far any of
default, terminate this Agreement and any of the obligations associated herein and the City and
the LAC nay seek actual damages incurred by the City and the ~ far any such default,
includin all costs to construct the Ofd bite Infrastructure if the Developer has constructed ar is
' , ~ i i .
construct~n the Pro~ectF I~atvvlthstand~ng the fareo~ng, tf the Developer has constructed, and
g
the City has accepted} the Off-Site Infrastructure, the Developer nevertheless shall be entitled to
receive the reimbursement Amount attributable to the actual casts incurred for such Off~Site
Infrastructure, subject to the funding and limitations provided in this Agreement Further, the
Ci 's and the LC's obligations to make any debt service payments on any LAC Bands, shall
survive termination of this Agreerr~ent.
~ Not~rithstanding anything in this Agreerr~ent which is or may appear to be to the
~ i .
contrary, if the performance of any covenant or obligation to be performed hereunder by either
Pa is delayed as a result of circumstances which are beyond the reasonable control of such
..
Party ~~vhich cireumstar~ces tray include, without l~rn~tation, pending or threatened l~ttatian,
acts of hod, war, acts of civil disobedience, fire or other casualty, shortage of materials, adverse
weather conditions such as, by way of illustration and pat limitation, severe rain storms ar
below freeing terr~peratures, hurricane or tornados} labor action, strikes ar similar acts} the time
far such erforrnance shall be extended by the amount of time of such delay. The Marty claiming
P ~ i~ eliver
dela of erfarrnance as a result of any of the foregoing force rna~eure events sha11 d
y P
written native of the camrriencement of any such delay resulting from such force majeure event
not later than seven days aver the claiming Party becarr~es aware of the same, and if the claiming
Pa fails to sa notify the other Party of the occurrence of a force majeure event causing such
.. ..
Bela ,the claimin Party shall not be entitled to avail Itself of the provisions far the extension of
y g
performance captained in this Section,
D Should Developer fail to develop and construct a lifestyle center, as described in
~~
the Develo meat Agreement entered into between the City and Developer, dated June 26, ~Oa7,
p ~ ~ t to
this Agreement shall terminate without obligation of City and LAC to provide re~rrYbursemen
Developer.
ART~CL ~I~Y
GENERAL
eotion S.~I Severabili ~ If any provision of this Agreement is held to be invalid or
unenforceable b an court of can~petent jurisdiction far any reason, such provision shall be
y y
full severable, and the remainder of this Agreement shall remain in full force and effect. This
Y
A regiment shall be construed and enforced as if such invalid ar unenforceable provision had
g
never carr~prised a part of this Agreement,
Section 8,~2 ~nd~~nni tca~ian, ~'he ~eve~oper agrees to i~r~en~f y, d~e~d a~~ ~rn~~
~~ 'i , ~~ ~~', and t~~~r resp~~fir~~ council ern~ers, board tne~b~rs, off ic~rs, er~pdayees
and a e~r~s, armless ~rorn any actions, suits, bens, cdais~ da~taes, expenses, losses and
liabilitr`es inc~udir~ reasonable a~~orn~ys' fees and e~rpcnses) arising ~rv~ or in co~rnec~~on
( g
2a
with i#s pra~edi~s p~r~s~a~t~ to ~~r's Are~~n~~f, w~ic r~d~tr~~ty s~a~~ sr~~vrve airy
~ermir~a~~o~ of ~hi~ ~fgreer~~~f.
Section $~03 Notice. Any notice or other co~nrnunication required or permitted to be
given pursuant to this Agreement shall be given to the other Party at the following address:
1f to the Developer: Crassto~rn Commons LLC
S55 Broad street, Suite X00
Boise, Idaho 83702
ATT~V: Legal Department
wl ~ Copy to: CBL ASOCiates Limited Partnership
203 Hampton Plaee Blvd, Ste, 500
Chattanooga, Tennessee 3721-4000
ATTN: er~eral Counsel
v~l a copy to: John I~. Bell
~VVood, Boykin bolter, P,C.
~ N. Upper Broadway, Suite 1100
Corpus Christi, Texas 7877
Ifto the City: City of Corpus Christi
1201 Leopard Street X78401}
P. Df Baas 9277
Carpus Christi, Texas 78449
ATTN: City Manager
~~ a copy to: City of Carpus Christi
~ ~~ 1 Leopard Street X78401 ~
P. ~, Box 9277
Carpus Christi, Texas 7849
,ATTN: City Attorney
If to the LCC: Crossto~rn Con~mans Develaprr~ent Corporation
1201 Leopard Street X78401}
P. ~. Box 9277
Carpus Christi, Texas 7849
ATTIC: City Attorney
Ar~y such notice ar carnrr~unication shall be deemed given an the date so delivered or so
deposited in the mail, unless otherv~ise provided herein. Hither Party nay change the above
address bar sending written notice of such change to the other Party in the manner provided
aboveF with the consent of the receiving Party, notice may he given by facsimile transmission or
electronic mail.
21
Section 8.a4 Amendments and waivers. Any provision of this Agreerrient nay be
amended or waived if such amendment or waiver is in writing and is signed by the City and the
Develaper.
Section H.DS Successors and Assigns. except as provided in Article ~~, na party shall
have the rl ht to asl n its ri his under this ~ reei~ent or any interest herein, without the prior
~ ~ ~ ~
written cansent of the other Party except the Developer may assign its rights and responsibilities
hereunder to airy related, affiliated or subsidiary entity to which substantially ail of its assets,
liabilities and its rights to proceed with development of the Project axe transferred. Such written
cansent shall not be unreasonably withheld and if such consent is not received by the Party
seeking cansent within ten {Ia}days of their request for consent, the assignrrient will be deemed
approved. Notwithstanding the foregoing, the City hereby consents to Developer's assignment
to a lending institution of all of the Developer's rights hereunder as security far repayment of one
ar more loans to ftnance the construction or ownership of the Project or construction of the
Infrastructure. The Developer shall give written notice of its assignment of its rights hereunder
to the other Parties within five business days of the occurrence of such assignment. The
fore ain notwithstanding, any assignment of the Developer's rights under this A,greerr~ent shall
not release the Develaper from its obligations under Section 401{C} hereof.
Section B.aG Exhibits• Titles of Articles Sections and Subsections The exhibits
attached to this Agreement are incorporated herein and shall be considered a part of this
A reerr~ent for the purposes stated herein, except that in the event of any conflict between any of
g ' , f this
the provisions of such exhibits and the provisions of this Agreement, the provisions o
A reerrxent shall prevail. All titles or headings are only far the convenience of the Parties and
g roes
shall not be construed to have any effect or rrieaning as to the agreement between the Pa
hereto. An reference herein to a Section ar Subsection shall be considered a reference to such
. ~ ~ • ~ i
Section ar Subsection of this Agreement unless otherwise stated. Any reference herein to an
exhibit shall be considered a reference to the applicable exhibit attached hereto unless otherwise
stated.
Section g.~? Construction. This Agreement is a contract made under and shall be
construed in accordance with and governed by the laws of the ~Jnited States of America and the
State of Texas, excluding conflicts of laws, as such laws are now in effect. Venue far any action
arising under this Areerrient shall lie in the state district courts afNueces County, Texas.
Section B.DS l~ntire A,~reement~ This written Agreement represents the final agreement
between the Parties and may not be contradicted by evidence of prior, conternporaneaus, ar
subse uent oral a regiments of the Parties. There are no unwritten oral agreements between the
q g
Parties
Section 8.a9 A ravel b the Parties. whenever this Agreement requires ar permits
a ravel ar cansent to be hereafter given by either Party, the Parties agree that such approval ar
pP
cansent shall not be urlreasonahly withheld ar delayed.
Section 8.1 a Additional Actions. The Parties agree to take such actions, including the
execution and delivery of such documents, instrurrients, petitions and crtif canons as rriay be
~~
necessary ~r appropriate, from time to tune, ~~ carry out the terms provision and intent of this
Agreement and to aid and assist each other in carrying out paid terms, provisions and intent.
[EXECUTION PAGES FOLLOW]
~~
YN 'O'NE HEREUF, the Parties hereto have caused this instrument to be dull
executed as of the a1~0~'day of , 207.
R~STO'V~N OIN~~NS, LLB, CITY ~F O~P~JS HRIST~, TEXAS
A 'texas limited liability company A Horne-rule rr~ur~icxpl corporation
By: By;
Je~fet ess Pr ~ident eo Noe, ~it~ 11~anager
C~~SST~N ~1VIM~N
~EVELPMENT ~RPORAT~~N
a Texas local government corporation
ATTEST;
By;
Nam ; ~ ~ N
7`itle: President
Armando Chapa, City Secretary
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~ropert~ description
Being ~~7.a9 acres of land, rraare or less, out of Lat ~-~, Section A, Bo~ernian Colony Lands,
volume ~, Page 4S, dap Records of Nueces County, Texas; and a .~D acre tract of land out of
Lot 2, Section 4, Bahernian Colony Lands, volume A, gage 48, ~Iap Records ofNueces County,
Texas; and a replat of Lot I, ~locl~ 9, Lexington Center, volume 3~, Page 4~, ~Iap Records of
~ueces County, Texas; and areplat ofTracts A-E, Haply Road Industrial Tract, olu~ne 28, Page
~a,1V~ap Retards of Nueces County, Texas; and a replat ofLat 1, black 2, dally industrial Tract,
~olutne ~ 1, Page 1 S~, IV~ap Retards of ~ueces County, Texas
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